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Everything you want to know about consent but were afraid to ask

A troubling lesson from the Belfast rape trial is that our understanding of what consent is is unclear

Sat, Apr 7, 2018, 06:00

Roe McDermott

One of the traditional, now highly contested, ideas about consent is the “No Means No” framework, where consent is understood to be revoked if and only if the unwilling partner says no and resists, firmly and explicitly

There were many lessons to be learned from the Belfast rape trial, from the intricacies of trials and the lack of representation offered to complainants, to the misogyny still perpetuated by some men, and the differences between the law in Northern Ireland and the Republic of Ireland.

But perhaps the important and troubling lesson from the trial is that our understanding and practice of consent is so unclear that it is possible for one person to leave a sexual encounter believing it was consensual, while another person can leave believing it was rape. This points to necessary cultural overhaul in how we think about consent.

How have the laws regarding consent in the Republic of Ireland evolved over time?

A legal definition of consent was introduced in The Criminal Law (Sexual Offences) Act 2017, which amended The Criminal Law (Sexual Offences) Act 2006. The law now states that “a person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act”, and provides several circumstances under which consent cannot be given, including being asleep or unconscious; under force or the threat of force or being impaired by alcohol or drugs.

The law clarifies that the list is not exhaustive and “does not limit the circumstances in which it may be established that a person did not consent to a sexual act”. The law also states that consent can be revoked at any time and that “any failure or omission on the part of a person to offer resistance to an act does not of itself constitute consent to that act.”

Ireland made marital rape illegal through the Criminal Law (Rape) (Amendment) Act in 1990. Though it has proven difficult to enforce, with only four convictions to date, the marital rape amendment was an important development. Acknowledging the existence of rape within relationships helped to dismantle the cultural myth that previous consent implies future consent, and the myth that most sexual assaults are committed by violent strangers, when 2016 figures from The Rape Crisis Centre show that 85 per cent of victims knew the perpetrators.

However, the phrasing of the amendment regarding martial rape only refers to vaginal rape of a wife by her husband, which still leaves the law concerning sexual violence towards men within a marriage, or sexual violence between same-sex couples, ambiguous.

If the law states that consent must be freely given and can be withdrawn, what bearing does a complainant’s sexual past have on rape trials?

Ideally, none. In reality, a lot.

A sexually active past is still often used to discredit complainants during rape trials. Solicitor Mark O’Sullivan explains that “you have to get the leave of the trial judge, so from a defence point of view, there would be an application in the absence of the jury where you must show that it is relevant to the case. A trial judge always has discretion as to whether or not it’s permissible to cross-examine a complainant on their sexual history. From a defence point of view, it’s something that has to be given a lot of consideration; it’s not a decision that anyone makes lightly.” O’Sullivan also notes that if a complainant is cross-examined about their sexual history, “the prosecution can elicit evidence on the defendant’s past, also”.

Figures released by the Legal Aid Board following a freedom of information request in 2017 show that over the past five years, an average of 30 per cent of rape trials involved questions about a complainant’s sexual history. In 2016, the practice was used in 28 rape trials out of the 99 which were scheduled.

Since 2001, complainants in the Republic are offered a protection that is not offered in Northern Ireland during this form of questioning. “When that form of questioning is happening,” explains O’Sullivan, “complainants will be assigned lawyers to advise them on that process, and they are separate from the DPP and, of course, separate from the defence. The complainant will have their own lawyers advising them on that process.”

Despite this protection, the mindset behind this type of questioning remains disturbing, as it can reinforce damaging myths about sexual violence, by implying that previous sexual activity can predict future consent.

The reality is that consent must be given on every single occasion, and cannot be transferred across sexual acts, interactions, or partners.

The use of such tactics in a courtroom are designed to appeal to a jury’s pre-existing biases surrounding sex and the trope of the “perfect victim”, who has a chaste sexual history, had no previous contact with the assailant, and who screamed or physically resisted during their assault sexual. These questions thus rely on and perpetuate damaging (and usually misogynistic) messages about sex and consent, and can prevent victims from reporting sexual assault, as they fear having their sexual history weaponised against them.

Isn’t consent simple: No Means No?

One of the traditional, now highly contested, ideas about consent is the “No Means No” framework, where consent is understood to be revoked if and only if the unwilling partner says no and resists, firmly and explicitly. However, this framework is not just inadequate, it is dangerous, perpetuating victim-blaming that can embolden perpetrators and prevent survivors of sexual violence from seeking justice – let alone receiving it.

The “No Means No” framework is dangerous because instead of demanding that a person asks for and receives consent before pursuing any form of sexual interaction, it places the onus on the unwilling partner to stop an unwanted sexual encounter – but this is not always possible or safe to do.

It is important to consider how men and women are socialised. From childhood, girls are usually taught to be polite and deferent, and are often criticised if they are perceived as being overly opinionated or “bossy”. Women are thus implicitly and explicitly taught to be agreeable, conflict-avoidant and to de-escalate emotionally charged situations by remaining calm and pleasant. But being perceived as confrontational or disagreeable is not just socially frowned upon; in certain circumstances, it can endanger women.

Many women have experienced unwanted catcalling, propositioning or indeed sexual touching from men. Ideally in these situations, telling perpetrators to back off would be safe and immediately respected. However, the opposite is often true, and women who firmly reject men are often met by anger, aggression and retaliation. So women often do not have the option of saying “no” firmly and clearly – it is literally unsafe for them to do so.

Also, saying “no” during an episode of sexual violence isn’t always possible because sexual violence, like many forms of trauma, can result in the victim psychologically or emotionally freezing. Like fight or flight, freezing is now recognised by psychologists and health professionals as a common reaction to a threat. Freezing leaves victims unable to articulate themselves clearly, and so relying on their ability to specifically say “no” is not just unrealistic and ineffective, but dangerous.

For male victims of sexual violence, it is also vital to remember how men are socialised. Our culture still assumes that men always desire sex, and refusing sex can be pathologised as “unmanly”. This damaging perception of masculinity means that men can feel uncomfortable or self-conscious explicitly turning down unwanted sexual advances. Men are also raised to value their physical strength, and their ability to physically resist any threat. However, men too can freeze or feel intimidated when faced with sexual violence, and so verbally saying “no” or attempting to fight back is not always possible.

By demanding verbal and physical resistance from victims, we are ensuring many victims will never come forward and report assaults, as they will blame themselves for not speaking up or fighting back, and they will – often correctly, unfortunately – believe that others will blame them, too.

It can be helpful to note the advice given victims of other crimes. When people are being robbed or mugged, we advise victims to remain calm, to hand over any valuables without fighting, and to attempt to co-operate and de-escalate the situation in order to keep safe. The “No Means No” framework disallows this form of self-protection.

A “Yes Means Yes” framework is far healthier, safer and more empowering, as its basic tenet is that consent is given freely without coercion; is enthusiastic and active; and is ongoing, so must be a continual process during sex.

The “Yes Means Yes” standard of consent seems unrealistic – can we really expect people to constantly ask “Is this okay?” during sex?

We can, we should, and with the slightest bit of practice, asking for consent will soon feel like a natural part of sex. And not just sex – good sex.

We need to eliminate the rhetoric that the “mood” of sex is one of silent, mind-reading ambiguity, and that this can be ruined by questions or communication. We also need to rid ourselves of the idea that the language of consent is only about preventing rape, and is too formal to be used naturally during sex. It isn’t. Consent is about communication, empathy and awareness – and it’s to do with sex, so it’s also about fun and pleasure.

We need to become comfortable asking “Can I touch you?”, “Is this okay”, “What would feel good?”, and explicitly saying “I want you to do this”, “It feels good when you do this”, or “I don’t like that” . These types of questions and responses do more than establish consent; they establish comfort and mutual pleasure. Expecting sex to be good when either party is too immature, uncomfortable or uncaring to ask a partner what they want, and if what they are doing is pleasurable, is unrealistic and dangerous. So we need to start asking.

Becoming fluent with the language of consent will also help erase any possibility of confusion over “mixed messages”. If the messages you are receiving are mixed, then they are not clear and enthusiastic – and so you must stop, ask for clarification, and not continue until your partner has clearly communicated consent.

Do people’s responsibilities around consent change if alcohol is involved?

The amount of alcohol consumed by both complainants and defendants is often invoked in trials, though O’Sullivan asserts that “it certainly is not a defence from an accused’s point of view. To say that they were intoxicated does not excuse a rape. From the complainant’s point of view, in regards to their alcohol consumption, the question for a jury becomes: was the level of intoxication so high that the complainant could not give consent?”

But that’s in law. What about in life?

Many people protest that consent cannot be given if a person is drunk, on the basis that many people have sex while drunk. Indeed, many people openly rely on alcohol to facilitate the socialising and flirting that can proceed to sex.

It is important to remember several things. First, that a basic tenet of progress is acknowledging that just because society has historically operated one way does not mean that is was healthy, right, or that it should continue. That society has previously assumed that having sex while drunk is generally harmless is not a reason to continue doing so. To draw a parallel, laws and attitudes towards drink-driving have changed drastically over time as our awareness of the effects of alcohol and drink-driving road collisions increase. We can enact the same cultural transformation in our thinking around alcohol and sex.

Second, we know that consuming a large amount of alcohol impairs judgment, perception and behaviour, and so have accepted that drinking heavily results in losing some legal and social rights – and plan accordingly. We book taxis, we get childcare, we don’t drink in certain situations. We should thus carefully examine any defensiveness we have in attitudes towards having sex while drunk. If we drink too much, we cannot ensure the sex we have is consensual, and so must accept the limits and responsibilities that accompany that choice. Just like we wait until we are sober to drive, we can wait until we’re sober to have sex.

Third, alcohol is not a lobotomy. Alcohol does not make people do things; it merely lowers their inhibitions so they are more likely to act on their own pre-existing impulses. Indeed, this is why many people rely on it for social and sexual interactions, as it makes them more confident making advances. If we as a society truly embraced an open and empowering philosophy around desire, sex and consent, we would not have to rely on alcohol during sexual interactions, which would make sex safer (and frankly, more skilful and enjoyable.) And if people truly embraced the tenets of enthusiastic consent, this would not disappear after a few drinks, meaning that even if drunken sex did occur, it would generally – not always, but generally – be safer for everyone.

Excessive drinking does not and will never outweigh our responsibility to prevent sexual violence. We need to start acting like it.

Don’t we just need to accept and respect how the justice system currently deals with sexual violence?

In a word, no. The justice system has always changed and will continue to change as deeper understanding of issues lead to new laws, amendments and protections. This is not a bad thing; on the contrary, it’s a sign of an evolving democratic society, whose concerns are reflected in a justice system that should be designed to protect us.

The problem is that the justice system was never designed to protect victims of sexual violence – because historically, victims have always been assumed to be women.

Simone George, a solicitor who specialises in domestic violence, is acutely aware of how the justice system fails to protect women.

“One thing that has been highlighted by this trial is that something that feminists have been addressing for years,” George says. “Namely, that the legal system, going back to when it was the British legal system, as with many other legal systems around the world, was built to support the rule of law in a society that was patriarchal. And by that I mean a society based on the dominance of a few over the many, where the few were not women. And it still is, even if women have more rights now than they did. Human rights lawyers and activists in this area, like Noeline Blackwell, say that the system works well enough if your car is stolen, but not if you’re raped. Under the current system, the rapist has broken the law of the State, and the victim is a witness for the State. Another way that might be useful to try to think about it is ‘he’ is alleged to have wronged society, rather than ‘her’. It is not her case, it is not her day in court. She is a vehicle for oral and other evidence, really, for whether this crime was committed by the defendant and if that defendant should be convicted for breaking the State’s law.”

In other words, it’s not that the system isn’t broken – it was built this way. It was built in a way that cannot be truly helpful to victims of sexual violence. And so it must change.

Minister for Justice Charlie Flanagan has asserted that he will be reviewing all aspects of how “such deeply sensitive trials are conducted” and whether further protections should be offered to complainants in trials about sexual violence. His commitment is laudable, and hopefully his review will result in more victims getting justice.

But the deeply rooted issues within both the system and society are inescapable. The last comprehensive study on the subject, the 2002 Sexual Abuse and Violence in Ireland report, found that while 42 per cent of women had experienced some form of sexual abuse, only 10 per cent of sexual offences were reported. The most recent figures on conviction rates reveal that only 8 per cent of trials result in a conviction. Quite simply, nearly everyone who commits sexual violence gets away with it.

If we acknowledge the terrifying reality of this, we must also acknowledge that it may be necessary to completely transform and rebuild the system, rather than trying to add a few protections onto a fundamentally flawed foundation.

It’s one thing to have faith in the justice system as long as it evolves with us, to serve us. But refusing to demand that the justice system truly protects victims of sexual violence merely because it’s difficult to imagine and campaign for change isn’t faith, it’s fatalism.

This is a historical moment in which we can examine consent in the realms of law and relationships, and decide to do better, be better. We can decide to protect victims. We can decide to embrace healthier, more respectful attitudes towards gender, sex and consent. We can decide who we want to be. Are we willing to?

Roe McDermot writes a weekly colum in the The Irish Times Magazine and is a Fulbright Scholar with an MA in sexuality studies from San Francisco State University. She’s currently undertaking a PhD in gendered and sexual citizenship at the Open University and Oxford.

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